https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7437

Situeti v Director of Public Prosecutions (Criminal Miscellaneous Application E069 of 2025) [2026] KEHC 7437 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7437 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E069 of 2025 RN Nyakundi, J May 29, 2026 IN THE MATTER OF ARTICLES 25(c), 26(1), 27(1)(2), 28, 29(a)(d)(f), 50(2)(p)(q), 159,165(3)(a)(b) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 216 AND 329 OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA AND IN THE MATTER OF SECTION 203 AS READ WITH SECTION 204 OF THE PENAL CODE CAP 63 LAWS OF KENYA AND IN THE MATTER OF PARAGRAPH 4.8.14 OF THE JUDICIARY SENTENCING POLICY GUIDELINES, 2023 AND IN THE MATTER OF THE SUPREME COURT IN MURUATETU & ANOTHER V REPUBLIC; KATIBA INSTITUTE & 5 OTHERS (AMICUS CURIAE) [2017] KESC 2 (KLR) AND IN THE MATTER OF THE HIGH COURT IN HCCRC NO 37 OF 2014 AT KAKAMEGA Between Anthony Khanyaha Situeti Applicant and Director of Public Prosecutions Respondent Ruling 1.Before this Court is notice of motion dated 25th November 2025, the Applicant seeks the following orders:a.That, may this honourable Court be pleased to hear and determine this Petition expeditiously.b.That, this honourable Court be pleased to substitute the life sentence which the Applicant is serving after being commuted from death sentence by H.E the President with a definite lenient sentence.c.That, this honourable Court be pleased to issue an order that the definite sentence as substituted to run from the date he was arrested on 7.07.2014 pursuant to the provisions of Section 333(2) of the Criminal Procedure Code.d.Or any other order which the honourable Court deems fit in the interest of justice. 2.Which application is based on the following grounds:a.That, the provisions of paragraph 4.8.14 of the Judiciary Sentencing Policy Guidelines, 2023 provides that all convicts as specified in the relevant instructing instrument qualify for resentencing. In the case of murder convicts:i.All offenders convicted of murder who have been subject to the mandatory death penalty and desire to be heard on sentence as at the time of the Supreme Court’s decision (14 December 2017).ii.All offenders sentenced to death for murder after the decision in Muruatetu but without regard to or compliance with the Court's declaration (i.e., not taken into account mitigating factors)b.That, the Applicant was charged with the offence of murder contrary to Section 203as read with Section 204 of the Penal Code in HCCR No 37 of 2014 at Kakamega High Court and sentenced to suffer death on the 17th day of November 2017.c.That, the Applicant never appealed to the Court of Appeal and has no interest in doing so hence the present application.d.That, the Applicant's death sentence was eventually commuted to LIFE imprisonment by H.E the president.e.That, the offence herein was committed within the jurisdiction of Vihiga High Court but at the time of the trial, the High Court station at Vihiga had not been established.f.That, the Applicant has been in lawful custody for the last eleven (11) years all the while serving an indeterminate sentence.g.That, the Supreme Court in Muruatetu & another v Republic; Katiba Institute &5 others (Amicus Curiae) [2017] KESC 2 (KLR) made a declaration that the mandatory nature of the death penalty as provided for under Section 203 as read with Section 204 of the Penal Code is unconstitutional.h.That, the Supreme Court gave further directions on the application of the Muruatetu case in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR), where it gave the following guidelines at paragraph18;a.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code;b.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu;c.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.d.Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawne.In re-sentencing hearing, the Court must record the prosecution's and the appellant’s submissions under section 329of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.f.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate Court.g.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the Court;(a) Age of the offender; (b) Being a first offender;(c) Whether the offender pleaded guilty;(d) Character and record of the offender; (e) Commission of the offence in response to gender-based violence; (f) The manner in which the offence was committed on the victim;(g) The physical and psychological effect of the offence on the victim's family; (h) Remorsefulness of the offender;(i) The possibility of reform and social re-adaptation of the offender;(j) Any other factor that the Court considers relevant.h.Where the appellant has lodged an appeal against sentence alone, the appellate Court will proceed to receive submissions on re-sentencing.i.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.j.That, the Applicant has been in lawful custody for the past eleven (11) years all the while serving an indefinite sentence and desires to be heard on resentencing so that he can the same can be replaced with a definite sentence which will give him hope of being reintegrated with the society after completion with the society after completion of his prison term.k.That, for the eleven (11) years the Applicant has been in prison serving an indeterminate sentence, he has taken full advantage of and positively embraced the rehabilitation programs offered by the Kenya Prions Service.l.That, the objectives of sentencing outlined under Paragraph 1.3.1 of the sentencing policy guidelines, 2023; retribution, deterrence, rehabilitation, restorative justice, community protection, denunciation and reconciliation have all been achieved.m.That, the only objective of sentencing that is yet to be achieved is reintegration Courtesy of the indeterminate sentence he is serving, the Applicant does not have a date which marks the end of his incarceration/punishment.n.That, indefinite life imprisonment is contrary to the Constitution and cannot be justified given the emerging norms of human decency and human rights.o.That, the balance between the justification for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence.p.That, it is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that the factors or shifts can be properly evaluated.q.That, the Constitution under Article 50(2)(q) provides a convicted person with the right to apply for a review.r.That, an indeterminate life sentence with no possibility of release is cruel, degrading and inhuman treatment.s.That, the Applicant has lived in perpetual darkness for the last eleven (11) years. His children have grown up without a father's love or guidance, his spouse has lived without her husband's love and support, his kin have lived without their family member. This is not what human dignity envisaged by Article 28 of the Constitution.t.That, a jurisprudential trend is eminently palpable where many countries have explicitly substituted life imprisonment to a term sentence either through legislation or through judicial interpretation of the Bill of Rights of the different countries. See Makoni vs Prions Commissioner, CCZ 8/16 Constitutional Application No CCZ 48/15) [2016] ZWCC 8 (13 July 2016).u.That, it is for the Courts to interpret the Bill of Rights broadly and liberally in order to give effect to the enforcement of the right with an interpretation which favour the enjoyment of that which is alleged to have been breached or has been threatened to be breached.v.That, denying the Applicant the benefit of the fundamental rights he is seeking will be against the principle in Article 28 of the Constitution on the observation, respect and protection of the Applicant's inherent human dignity because failure to give him the benefit that was bestowed to the Applicants in the Muruatetu Case (supra) and will be tantamount to rating the Applicant to be an inferior human being undeserving of equal treatment on equal footing with Muruatetu.w.That, this honorable Court is vested with sufficient jurisdiction to handle an application of this nature pursuant to Article 165(3) of the Constitution as read with Article 23 of the Constitution Decision 3.The Applicant before this Court was charged and convicted by the Court concurrent jurisdiction. According to the affidavit the Applicant avers or assert that he preferred not to file an appeal to the Court of appeal but to petition this Court to review the sentence of life imprisonment which was commuted by the State from that of the death penalty imposed by the High Court. 4.From the facts of this petition, the jurisdiction of the Court falls under Article 50(6) (a) and (b) of the Constitution of Kenya which grants convicted person the right to petition the High Court for a new trial based on new, compelling evidence and exhausted appeals. This provision under Article 50(6) of the Constitution on the other hand provides a convict the right to petition the High Court for a new/fresh trial. The Article reads as follows:A person who is convicted of a criminal offence may petition the High Court for a new trial if:(a)the person’s appeal, if any, has been dismissed by the highest Court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal and(b)new and compelling evidence has become available.A fresh trail entails a re-constitution of the trial Court to admit the charge(s) afresh and to re-hear them. The two limbs under Article 50(6) must be established, before a High Court can order a re-trial. 5.Where the High Court finds that the first limb of Article 50(6) has been satisfied, it will proceed to interrogate the second limb: whether new and compelling evidence has become available.The Supreme Court in Tom Martins Kibisu -vs- Republic [2022] eKLR describes “new evidence” as “evidence which was not available at the time of trial and which, despite exercise of due diligence, could not have been availed at the trial”; and “compelling evidence” as “evidence that would have been admissible at the trial, of high probative value and capable of belief, and which would probably have led to a different verdict had it been adduced at trial.”New and compelling evidence is therefore evidence that on the face of it is material to, or capable of affecting or varying the subject charges, the criminal trial process, the conviction entered, or the sentence passed against an accused person. 6.The petition must be tested within the strict Constitution threshold which include the following grounds: Exhaustion of appeals (Article 50(6)(a)): The Applicant’s appeal must have been dismissed by the highest Court they are entitled to appeal to, or they must have missed the original window to appeal. New compelling evidence (Article 50(6)(b)): the evidence must not have been available at the original trial could not have been found with reasonable diligence, and is capable of proving innocence or highlighting a violation of constitutional duties. 7.From this legal perspective the Petitioner has not qualified to have the grievance in sentence to be subjected to a retrial as even life sentence is a legal sentence in our legislative scheme as expressed by Parliament. As a consequence, the petition is dismissed for want of merit. It is so ordered. DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF MAY 2026............................................R. NYAKUNDIJUDGE